KACHALSKY v. COUNTY OF WESTCHESTERDocket Nos. 11-3642 (Lead), 11-3962(XAP).
701 F.3d 81 (2012)
Alan KACHALSKY, Christina Nikolov, Johnnie Nance, Anna Marcucci-Nance, Eric Detmer, Second Amendment Foundation, Inc., Plaintiffs-Appellants-Cross-Appellees,
COUNTY OF WESTCHESTER, Defendant-Appellee-Cross-Appellant,
Susan Cacace, Jeffrey A. Cohen, Albert Lorenzor, Robert K. Holdman, Defendants-Appellees.
COUNTY OF WESTCHESTER, Defendant-Appellee-Cross-Appellant,
Susan Cacace, Jeffrey A. Cohen, Albert Lorenzor, Robert K. Holdman, Defendants-Appellees.
United States Court of Appeals, Second Circuit.
Argued: August 22, 2012.
Decided: November 27, 2012.
Alan Gura, Gura & Possessky, PLLC, Alexandria, VA, for Plaintiffs-Appellants-Cross-Appellees. Thomas G. Gardiner, Sr. Assistant County Attorney ( James Castro-Blanco, Chief Deputy County Attorney, on the brief), for Robert F. Meehan, County Attorney for the County of Westchester, Westchester, NY, for Defendant-Appellee-Cross-Appellant. Simon Heller, Assistant Solicitor General ( Barbara D. Underwood, Solicitor General, Richard Dearing, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Defendants-Appellees.
Before: KATZMANN, WESLEY and LYNCH, Circuit Judges.
WESLEY, Circuit Judge:
This appeal presents a single issue: Does New York's handgun licensing scheme violate the Second Amendment by requiring an applicant to demonstrate "proper cause" to obtain a license to carry a concealed handgun in public?
Plaintiffs Alan Kachalsky, Christina Nikolov, Johnnie Nance, Anna Marcucci-Nance, and Eric Detmer (together, the "Plaintiffs") all seek to carry handguns outside the home for self-defense. Each applied for and was denied a full-carry concealed-handgun license by one of the defendant licensing officers (the "State Defendants"
The State Defendants moved for summary judgment. The district court granted that motion and granted Defendant County of Westchester summary judgment sua sponte. Kachalsky v. Cacace,
New York's efforts in regulating the possession and use of firearms predate the Constitution. By 1785, New York had enacted laws regulating when and where firearms could be used, as well as restricting the storage of gun powder. See, e.g., Act of Apr. 22, 1785, ch. 81, 1785 Laws of N.Y. 152; Act of Apr. 13, 1784, ch. 28, 1784 Laws of N.Y. 627. Like most other states, during the nineteenth century, New York heavily regulated the carrying of concealable firearms. In 1881, New York prohibited the concealed carrying of "any kind of fire-arms." 1881 Laws of N.Y., ch. 676, at 412. In 1884, New York instituted a statewide licensing requirement for minors carrying weapons in public, see 1884 Laws of N.Y., ch. 46, § 8, at 47, and soon after the turn of the century, it expanded its licensing requirements to include all persons carrying concealable pistols, see 1905 Laws of N.Y., ch. 92, § 2, at 129-30.
Due to a rise in violent crime associated with concealable firearms in the early twentieth century, New York enacted the Sullivan Law in 1911, which made it unlawful for any person to possess, without a license, "any pistol, revolver or other firearm of a size which may be concealed upon the person." See 1911 Laws of N.Y., ch. 195, § 1, at 443 (codifying N.Y. Penal Law § 1897, ¶ 3); see also N.Y. Legislative Service, Dangerous Weapons — "Sullivan Bill," 1911 Ch. 195 (1911). A study of homicides and suicides completed shortly before the law's enactment explained: "The increase of homicide by shooting indicates... the urgent necessity of the proper authorities taking some measures for the regulation of the indiscriminate sale and carrying of firearms." Revolver Killings
Id. (quoting N.Y. State Coroner's Office Report).
The Sullivan Law survived constitutional attack shortly after it was passed. People ex rel. Darling v. Warden of City Prison, 154 A.D. 413, 422, 139 N.Y.S. 277 (1st Dep't 1913). Although the law was upheld, in part, on what is now the erroneous belief that the Second Amendment does not apply to the states, the decision provides additional background regarding the law's enactment:
Id. at 423, 139 N.Y.S. 277 (emphasis added).
In 1913, the Sullivan Law was amended to impose a statewide standard for the issuance of licenses to carry firearms in public. 1913 Laws of N.Y., ch. 608, at 1627-30. To obtain a license to carry a concealed pistol or revolver the applicant was required to demonstrate "good moral character, and that proper cause exists for the issuance [of the license]." Id. at 1629. One hundred years later, the proper cause requirement remains a feature of New York's statutory regime.
New York maintains a general prohibition on the possession of "firearms" absent a license. See N.Y. Penal Law §§ 265.01-265.04, 265.20(a)(3). A "firearm" is defined to include pistols and revolvers; shotguns with barrels less than eighteen inches in length; rifles with barrels less than sixteen inches in length; "any weapon made from a shotgun or rifle" with an overall length of less than twenty-six inches; and assault weapons. N.Y. Penal Law § 265.00(3). Rifles and shotguns are not subject to the licensing provisions of the statute.
Section 400.00 of the Penal Law "is the exclusive statutory mechanism for the licensing of firearms in New York State."
Most licenses are limited by place or profession. Licenses "shall be issued" to possess a registered handgun in the home or in a place of business by a merchant or storekeeper. N.Y. Penal Law § 400.00(2)(a)-(b). And licenses "shall be issued" for a messenger employed by a banking institution or express company to carry a concealed handgun, as well as for certain state and city judges and those employed by a prison or jail. § 400.00(2)(c)-(e).
This case targets the license available under section 400.00(2)(f). That section provides that a license "shall be issued to... have and carry [a firearm] concealed... by any person when proper cause exists for the issuance thereof." N.Y. Penal Law § 400.00(2)(f). This is the
"Proper cause" is not defined by the Penal Law, but New York State courts have defined the term to include carrying a handgun for target practice, hunting, or self-defense. When an applicant demonstrates proper cause to carry a handgun for target practice or hunting, the licensing officer may restrict a carry license "to the purposes that justified the issuance."
To establish proper cause to obtain a license without any restrictions — the full-carry license that Plaintiffs seek in this case — an applicant must "demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession." Klenosky v. N.Y City Police Dep't,
The application process for a license is "rigorous" and administered locally. Bach v. Pataki,
Licensing officers, often local judges,
Each individual Plaintiff applied for a full-carry license under section 400.00(2)(f). Four of the five Plaintiffs made no effort to comply with New York's requirements for a full-carry license, that is, they did not claim a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession. Plaintiff Kachalsky asserted that the Second Amendment "entitles him to an unrestricted permit without further establishing `proper cause.'" J.A. 33. He noted: "[W]e live in a world where sporadic random violence might at any moment place one in a position where one needs to defend onself or possibly others." J.A. 33-34. Plaintiffs Nance and Marcucci-Nance asserted that they demonstrated proper cause because they were citizens in "good standing" in their community and gainfully employed. J.A. 43-44, 48-49. Plaintiff Detmer asserted that he demonstrated
Plaintiffs' applications were all denied for the same reason: Failure to show any facts demonstrating a need for self-protection distinguishable from that of the general public. J.A. 34 (Kachalsky), 37 (Nikolov), 39 (Detmer), 43-44 (Nance), 48-49 (Marcucci-Nance). Nikolov's contention that her status as a transgender female puts her at risk of violence was rejected because she did not "report ... any type of threat to her own safety anywhere." J.A. 36. Plaintiffs aver that they have not reapplied for full-carry licenses because they believe it would be futile, and that they would carry handguns in public but for fear of arrest, prosecution, fine, and/or imprisonment.
Invoking Heller, Plaintiffs contend that the Second Amendment guarantees them a right to possess and carry weapons in public to defend themselves from dangerous confrontation and that New York cannot constitutionally force them to demonstrate proper cause to exercise that right. Defendants counter that the proper cause requirement does not burden conduct protected by the Second Amendment. They share the district court's view that the Supreme Court's pronouncement in Heller limits the right to bear arms for self-defense to the home.
Heller provides no categorical answer to this case. And in many ways, it raises more questions than it answers. In Heller, the Supreme Court concluded that the Second Amendment codifies a pre-existing "individual right to possess and carry weapons in case of confrontation." 554 U.S. at 592,
There was no need in Heller to further define the scope of the Second Amendment or the standard of review for laws that burden Second Amendment rights. As the Court saw it, "[f]ew laws in the history of our Nation have come close to the severe restriction of the District's handgun ban." Id. at 629,
Two years after Heller, the Supreme Court held that the Second Amendment's protections, whatever their limits, apply fully to the states through the Fourteenth Amendment. McDonald v. City of Chicago, ___ U.S. ___,
What we know from these decisions is that Second Amendment guarantees are at their zenith within the home. Heller, 554 U.S. at 628-29,
Plaintiffs contend that, as in Heller, history and tradition demonstrate that there is a "fundamental right" to carry handguns in public, and though a state may regulate open or concealed carrying of handguns, it cannot ban
To be sure, some nineteenth-century state courts offered interpretations of the Second Amendment and analogous state constitutional provisions that are similar to Plaintiffs' position. In State v. Reid, the Supreme Court of Alabama upheld a prohibition on the concealed carrying of "any species of fire arms" but cautioned that the state's ability to regulate firearms was not unlimited and could not "amount[ ] to a destruction of the right, or ... require[ ] arms to be so borne as to render them wholly useless for the purpose of defence." 1 Ala. 612, 1840 WL 229, at *2-3 (1840). Relying on Reid, the Supreme Court of Georgia held that a statute prohibiting the carrying of concealed pistols was unconstitutional insofar as it also "contains a prohibition against bearing arms openly." Nunn v. State, 1 Ga. 243, 1846 WL 1167, at *11 (1846) (emphasis in original).
But this was hardly a universal view. Other states read restrictions on the public carrying of weapons as entirely consistent with constitutional protections of the right to keep and bear arms. At least four states once banned the carrying of pistols and similar weapons in public, both in a concealed or an open manner. See, e.g., Ch. 96, §§ 1-2, 1881 Ark. Acts at 191-92; Act of Dec. 2, 1875, ch. 52, § 1, 1876 Wyo. Terr. Comp. Laws, at 352; Ch. 13, § 1, 1870 Tenn. Acts at 28; Act of Apr. 12, 1871, ch. 34, § 1, 1871 Tex. Gen. Laws at 25. And the statutes in Texas, Tennessee, and Arkansas withstood constitutional
It seems apparent to us that unlike the situation in Heller where "[f]ew laws in the history of our Nation have come close" to D.C.'s total ban on usable handguns in the home, New York's restriction on firearm possession in public has a number of close and longstanding cousins.
Even if we believed that we should look solely to this highly ambiguous history and tradition to determine the meaning of the Amendment, we would find that the cited sources do not directly address the specific question before us: Can New York limit handgun licenses to those demonstrating a special need for self-protection? Unlike the cases and statutes discussed above, New York's proper cause requirement does not operate as a complete ban on the possession of handguns in public. Analogizing New York's licensing scheme (or any other gun regulation for that matter) to the array of statutes enacted or construed over one hundred years ago has its limits.
Plaintiffs raise a second argument with regard to how we should measure the constitutional legitimacy of the New York statute that takes a decidedly different tack. They suggest that we apply First Amendment prior-restraint analysis in lieu of means-end scrutiny to assess the proper cause requirement.
We recognize that analogies between the First and Second Amendment were made often in Heller, 554 U.S. at 582, 595, 606, 635,
But even if we decided to apply prior-restraint doctrine to Second Amendment claims, this case would be a poor vehicle for its maiden voyage. To make out a prior-restraint argument, Plaintiffs would have to show that the proper cause requirement lacks "narrow, objective, and definite standards," thereby granting officials unbridled discretion in making licensing determinations. Forsyth Cnty. v. Nationalist Movement,
Plaintiffs' complaint is not that the proper cause requirement is
Plaintiffs' attempts to equate this case with Heller or to draw analogies to First Amendment concerns come up short.
Thus, given our assumption that the Second Amendment applies to this context, the question becomes how closely to scrutinize New York's statute to determine its constitutional mettle. Heller, as noted above, expressly avoided deciding the standard of review for a law burdening the right to bear arms because it concluded that D.C.'s handgun ban was unconstitutional "[u]nder any of the standards of scrutiny [traditionally] applied to enumerated constitutional rights." Heller, 554 U.S. at 628,
We have held that "heightened scrutiny is triggered only by those restrictions that (like the complete prohibition on handguns struck down in Heller) operate as a substantial burden on the ability of law-abiding citizens to possess and use a firearm for self-defense (or for other lawful purposes)." United States v. Decastro,
We do not believe, however, that heightened scrutiny must always be akin to strict scrutiny when a law burdens the Second Amendment. Heller explains that the "core" protection of the Second Amendment is the "right of law-abiding, responsible citizens to use arms in defense of hearth and home." Heller, 554 U.S. at 634-35,
The proper cause requirement falls outside the core Second Amendment protections identified in Heller. New York's licensing scheme affects the ability to carry handguns only
Treating the home as special and subject to limited state regulation is not unique to firearm regulation; it permeates individual rights jurisprudence. For instance, in Stanley v. Georgia, the Court held that in-home possession of obscene materials could not be criminalized, even as it assumed that public display of obscenity was unprotected.
But while the state's ability to regulate firearms is circumscribed in the home, "outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense." Masciandaro, 638 F.3d at 470. There is a longstanding tradition of states regulating firearm possession and use in public because of the
In the nineteenth century, laws directly regulating concealable weapons for public safety became commonplace and far more expansive in scope than regulations during the Founding Era. Most states enacted laws banning the carrying of concealed weapons.
In some ways, these concealed-carry bans were similar to New York's law because while a few states with concealed-carry bans considered self-defense concerns, the exceptions were extremely limited. For instance, in Ohio there was an exception if "the accused was, at the time of carrying [the concealed weapon] engaged in a pursuit of any lawful business, calling or employment, and that the circumstances... justif[ied] a prudent man in carrying the weapon ... for the defense of his person." Act of Mar. 18, 1859, 1859 Ohio Laws at 56-57. Similarly, in Tennessee, a person was exempted from the concealed carry ban who was "on a journey to any place out of his county or state." Act of Oct. 19, 1821, ch. XIII, 1821 Tenn. Pub. Acts at 15-16. By contrast, Virginia's concealed-carry ban was even stricter than New York's statute because it explicitly rejected a self-defense exception. A defendant was guilty under Virginia's concealed-carry ban even if he was acting in self-defense when using the weapon. 1838 Va. Acts ch. 101 at 76.
Some states went even further than prohibiting the carrying of concealed weapons. As discussed above, several states banned concealable weapons (subject to certain exceptions) altogether whether carried openly or concealed. See Part II.A. Other states banned the sale of concealable weapons. For instance, Georgia criminalized the sale of concealable weapons, effectively moving toward their complete prohibition. Act of Dec. 25, 1837, 1837 Ga. Laws at 90 (protecting citizens of Georgia against the use of deadly weapons). Tennessee enacted a similar law, which withstood constitutional challenge. Act of Jan. 27, 1838, ch. CXXXVII, 1837-1838 Tenn. Pub. Acts 200. In upholding the law, the Supreme Court of Tennessee reasoned that "[t]he Legislature thought the evil great, and, to effectually remove it, made the remedy strong." Day v. State, 37 Tenn. (5 Sneed) 496, 500 (1857).
The historical prevalence of the regulation of firearms in public demonstrates that while the Second Amendment's core concerns are strongest inside hearth and home, states have long recognized a countervailing and competing set of concerns with regard to handgun ownership and use in public. Understanding the scope of the constitutional right is the first step in determining the yard stick by which we measure the state regulation. See, e.g., Bd. Of Trustees of Univ. of Alabama v. Garrett,
We believe state regulation of the use of firearms in public was "enshrined with[in] the scope" of the Second Amendment when it was adopted. Heller, 554. U.S. at 634. As Plaintiffs admitted at oral argument, "the state enjoys a fair degree of latitude" to regulate the use and possession of firearms in public. The Second Amendment does not foreclose regulatory measures to a degree that would result in "handcuffing lawmakers' ability to prevent armed mayhem in public places." Masciandaro, 638 F.3d at 471 (internal quotation marks omitted).
Because our tradition so clearly indicates a substantial role for state regulation of the carrying of firearms in public, we conclude that intermediate scrutiny is appropriate in this case. The proper cause requirement passes constitutional muster if it is substantially related to the achievement of an important governmental interest. See, e.g., Masciandaro, 638 F.3d
As the parties agree, New York has substantial, indeed compelling, governmental interests in public safety and crime prevention. See, e.g., Schenck v. Pro-Choice Network,
In making this determination, "substantial deference to the predictive judgments of [the legislature]" is warranted. Turner Broad. Sys., Inc. v. FCC,
New York's legislative judgment concerning handgun possession in public was made one-hundred years ago. In 1911, with the enactment of the Sullivan Law, New York identified the dangers inherent in the carrying of handguns in public. N.Y. Legislative Service, Dangerous Weapons — "Sullivan Bill," 1911 Ch. 195 (1911). And since 1913, New York's elected officials determined that a reasonable method for combating these dangers was to limit handgun possession in public to those showing proper cause for the issuance of a license. 1913 Laws of N.Y., ch. 608, at 1627-30. The proper cause requirement has remained a hallmark of New York's handgun regulation since then.
Report of the N.Y. State Joint Legislative Comm. On Firearms & Ammunition, Doc. No. 6, at 12-13 (1965). Similar concerns were voiced in 1987, during a floor debate concerning possible changes to the proper cause requirement. See N.Y. Senate Debate on Senate Bill 3409, at 2471 (June 2, 1987).
The connection between promoting public safety and regulating handgun possession in public is not just a conclusion reached by New York. It has served as the basis for other states' handgun regulations, as recognized by various lower courts. Piszczatoski,
Given New York's interest in regulating handgun possession for public safety and crime prevention, it decided not to ban handgun possession, but to limit it to those individuals who have an actual reason ("proper cause") to carry the weapon. In this vein, licensing is oriented to the Second Amendment's protections. Thus, proper cause is met and a license "shall be issued" when a person wants to use a handgun for target practice or hunting. N.Y. Penal Law § 400.00(2)(f); see, e.g., Clyne, 58 A.D.2d at 947, 397 N.Y.S.2d 186. And proper cause is met and a license "shall be issued" when a person has an actual and articulable — rather than merely speculative or specious — need for self-defense. N.Y. Penal Law § 400.00(2)(f); see, e.g., Klenosky, 75 A.D.2d at 793, 428 N.Y.S.2d 256. Moreover, the other provisions of section 400.00(2) create alternative means by which applicants engaged in certain employment may secure a carry license for self-defense. As explained earlier, a license "shall be issued" to merchants and storekeepers for them to keep handguns in their place of business; to messengers for banking institutions and express companies; to state judges and justices; and to employees at correctional facilities. N.Y. Penal Law § 400.00(2)(b)-(e).
Restricting handgun possession in public to those who have a reason to possess the weapon for a lawful purpose is substantially related to New York's interests in public safety and crime prevention. It is not, as Plaintiffs contend, an arbitrary licensing regime no different from limiting handgun possession to every tenth citizen. This argument asks us to conduct a review bordering on strict scrutiny to ensure that New York's regulatory choice will protect public safety more than the least restrictive alternative. But, as explained above, New York's law need only be
To be sure, we recognize the existence of studies and data challenging the relationship between handgun ownership by lawful citizens and violent crime. Plaintiffs' Reply Br. at 37-38. We also recognize that many violent crimes occur without any warning to the victims. But New York also submitted studies and data demonstrating that widespread access to handguns in public increases the likelihood that felonies will result in death and fundamentally alters the safety and character of public spaces. J.A. 453, 486-90. It is the legislature's job, not ours, to weigh conflicting evidence and make policy judgments. Indeed, assessing the risks and benefits of handgun possession and shaping a licensing scheme to maximize the competing public-policy objectives, as New York did, is precisely the type of discretionary judgment that officials in the legislative and executive branches of state government regularly make.
According to Plaintiffs, however, New York's conclusions as to the risks posed by handgun possession in public are "totally irrelevant." Plaintiffs' Reply Br. at 38. Because the constitutional right to bear arms is specifically for self-defense, they reason that the state may not limit the right on the basis that it is too dangerous to exercise, nor may it limit the right to those showing a special need to exercise it. In Plaintiffs' view, the "`enshrinement'" of the right to bear arms "`necessarily takes [these] policy choices off the table.'" Id. at 39 (quoting Heller, 554 U.S. at 636,
Plaintiffs misconstrue the character and scope of the Second Amendment. States have long chosen to regulate the right to bear arms because of the risks posed by its exercise. As Plaintiffs admit and Heller strongly suggests, the state may ban firearm possession in sensitive places, presumably on the ground that it is too dangerous to permit the possession of firearms in those locations. 554 U.S. at 626-27,
We are also not convinced that the state may not limit the right to bear arms to those showing a "special need for self-protection." Plaintiffs contend that their "desire for self-defense ... is all the `proper cause' required ... by the Second Amendment to carry a firearm." Plaintiffs' Br. at 45. They reason that the exercise of the right to bear arms cannot
State regulation under the Second Amendment has always been more robust than of other enumerated rights. For example, no law could prohibit felons or the mentally ill from speaking on a particular topic or exercising their religious freedom. Cf. Simon & Schuster, Inc. v. New York State Crime Victims Bd.,
Moreover, as discussed above, extensive state regulation of handguns has never been considered incompatible with the Second Amendment or, for that matter, the common-law right to self-defense. This includes significant restrictions on how handguns are carried, complete prohibitions on carrying the weapon in public, and even in some instances, prohibitions on purchasing handguns. In this vein, handguns have been subject to a level of state regulation that is stricter than any other enumerated right.
In light of the state's considerable authority — enshrined within the Second Amendment — to regulate firearm possession in public, requiring a showing that there is an objective threat to a person's safety — a "special need for self-protection" — before granting a carry license is entirely consistent with the right to bear arms. Indeed, there is no right to engage in self-defense with a firearm until the objective circumstances justify the use of deadly force.
Plaintiffs counter that the need for self-defense may arise at any moment without prior warning. True enough. But New York determined that limiting handgun possession to persons who have an articulable basis for believing they will need the weapon for self-defense is in the best interest of public safety and outweighs the need to have a handgun for an unexpected confrontation. New York did not run afoul of the Second Amendment by doing so.
To be sure, "the enshrinement of constitutional rights necessarily takes certain policy choices off the table." Heller, 554 U.S. at 636,
In view of our determination that New York's proper cause requirement is constitutional under the Second Amendment as applied to Plaintiffs, we also reject their facial overbreadth challenge.
For the foregoing reasons, the judgment of the district court is hereby
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